Wills & Power of Attorney in North Carolina

What most people aren’t thinking about — often until it’s too late — is what would happen if they were no longer there. No matter your age, it’s important to plan for the hopefully unlikely event of a tragic accident or illness, especially if you have a family whose interests you want to protect or own property that you’d like to see distributed in a particular way. It’s never too early to have a will or a living will in place so that your wishes are known in the event that you pass away or experience a debilitating illness.

You have options in North Carolina for when you want to plan for the future — whether it’s your personal future and your medical wishes or the future of your family if you’re no longer there. Depending on your needs, you may want to talk to a North Carolina family lawyer about drafting a:

• Will
• Living Will, also known as an Advance Directive
• Health Care Power of Attorney
• Minor Power of Attorney
• Durable Power of Attorney
• Military Power of Attorney

A North Carolina will attorney can discuss your circumstances and help you decide on the best course of action for you, as well as create documents that meet North Carolina’s legal requirements.

Attorney Jonathan Breeden has more than 20 years of experience helping families in Johnston, Wake, and Harnett counties, including communities such as Garner, Raleigh, Angier, and Smithfield, with wills, living wills, and power of attorney documents. He understands how important it is to you to have a plan in place to protect your interests and those of your family, and can provide knowledgeable and compassionate advice about the best ways to accomplish your goals.

Call Breeden Law at (919) 661-4970 to schedule your appointment today.

What is the Importance of Making a Will?

Everyone should have a will in North Carolina to ensure their last wishes are honored after they pass away.

If you pass away without having a valid will in place, known in legal terms as dying intestate, your estate — basically everything you own — will go to your next living relative or relatives according to a formula under North Carolina’s intestate succession laws.

What is a Will?

In the simplest terms, a will is a written, legally binding document that instructs your heirs and the court on how to handle your estate when you pass. Generally, your estate is everything you own, including money, personal property, and real estate. Depending on your wishes and the size of your estate, wills range from very simple to incredibly complex documents.

In a will, you can state how your property and money should be specifically divided among your friends, family, and organizations. If you want pieces of furniture to go a certain relative or a sum to be donated to charity, this is the place to let that desire be formally known.

You can also name an executor of your estate, who will be the person responsible for overseeing your wishes and ensuring your debts and taxes are paid. You aren’t required to name an executor, and, if you choose not to, the court will appoint an administrator.

Why You Need a Will in North Carolina

At its most basic, a will is a document that states how you want your property distributed after your death. A will can be a complex document depending on the nature of the estate you’re leaving behind. If you have significant financial assets, such as bank accounts, investments, insurance policies, business interests, and other property that you want to be divided among numerous family members, friends, business associates, or charities, your will may be a complicated document.

If you pass away without having a valid will in place, known in legal terms as dying intestate, your estate — basically everything you own — will go to your next living relative or relatives according to a formula under North Carolina’s intestate succession laws. If you have no relatives who can inherit under the state’s intestacy laws, your estate goes to the state to support students at a North Carolina college or university.

Simply put, if you want control over how your estate is distributed, such as wanting to “disinherit” any of your legal heirs or wanting to leave your money and property to a beloved charity, you need a valid will in North Carolina. Otherwise, that distribution is pre-determined by North Carolina’s intestacy laws.

The Benefits of a Will

Without a will, your estate will be distributed using North Carolina’s intestate succession formula. This means your property and money will be divided by a predetermined rule that doesn’t necessarily correspond with how you’d prefer that your money and property be inherited.

Some of the many benefits of leaving behind a valid will are:

• Deciding how your assets are distributed. Many people want to leave gifts to those who aren’t technically their heirs, such as close friends or romantic partners. Without a will to provide for this desire, state law will generally give a certain amount of property to your legal spouse and a certain amount to your children. If you are not survived by a spouse or children, intestate succession dictates which of your descendants or parents will inherit and how much.
• Reducing the likelihood of conflict. By making decisions regarding the financial and property distribution of your estate, you lessen the likelihood of arguments between family members. While you can’t guarantee everyone will agree with your wishes, a valid will can help loved ones avoid unpleasant conversations or even future legal battles.
• Providing for the future of your business. A will is often a crucial part of a business continuity plan. If you own a part of a business, it’s important for you and your partners to determine how your share is handled upon your death. You may want your surviving spouse or one of your children to inherit your portion and position in the business or it may be best for your portion to be sold to your partners.
• Limiting the tax ramifications. In general, a large estate leaves behind a significant tax burden. By carefully apportioning your gifts or using other legal vehicles, you may be able to ease the financial burden for your family.
• Taking care of your minor children. Wills are particularly important if you leave behind minor children without another parent. Through this document, you can set up their ongoing care by stating who they’d live with and how they’d be financially supported.

How to Create a Valid Will in North Carolina

To write a will that the court will uphold, you must follow specific rules. In most states, it isn’t enough to informally write down your wishes and stick it in your desk drawer or safe unless the document is wholly in your handwriting.

Here are the rules you must follow to create a valid North Carolina will:

• You must be at least 18 years old
• You must be of sound mind
• It must be written
• You must sign it
• At least two witnesses who were present at the execution of the will must sign it in your presence, and the signatures of you and your witnesses must be notarized

Those who have been deemed incompetent by a previous legal proceeding cannot create a valid will.

Additionally, the witnesses must not be beneficiaries under the will or beneficiaries under North Carolina intestate succession laws of your estate. If a witness is to receive a gift, you would need two other disinterested witnesses, otherwise, the gift is void.

The best way to ensure that your will is valid is to hire a skilled North Carolina estate planning attorney to write your will. A lawyer who is experienced with writing wills in North Carolina can ensure that your will meets all of the requirements to be valid — and help your family avoid lengthy and potentially contentious probate proceedings.

The Probate Process

Upon a person’s death and the discovery of a will, the written document must be filed with the Clerk of the Superior Court in the county of residence of the deceased. The court will issue what are known as “letters” to the executor named in the will or to the person who is qualified to be the administrator of the estate.

Upon receiving this document, the executor has the legal duty to execute your will, including:

• Taking an inventory of your estate
• Paying debts and taxes
• Distributing assets
• Selling property, if necessary

There are many specific steps executors must take during the probate process, but when the executor is finished with these tasks and provides a final account to the court, the court will then release him or her from any further duties or liabilities that may arise in the future.

What is an Advance Directive?

An advance directive, or living will, is a legal document that states your wishes regarding life-saving medical treatment if you are unable to express those wishes yourself. A living will tells doctors whether you want to receive measures to prolong your life if you:

• Have a terminal illness that is likely to result in death in a relatively short time
• Are unconscious and there is a high degree of medical certainty that you will never regain consciousness
• You have advanced dementia and there is a high degree of medical certainty that your dementia will never be reversed

This document is especially important in taking away the burden of difficult medical decisions that family members might be called upon to make as they are in shock or worried about your medical condition.

A living will also specifies whether you want to receive treatments such as:

• Being fed through a feeding tube
• Being artificially hydrated, such as through an IV

Many people consider writing a living will when they reach an advanced age or are diagnosed with a chronic or terminal illness that may affect their ability to express their desires about end-of-life decisions later on.

However, anyone at any age can experience a catastrophic accident, such as a car crash that causes severe brain damage. In that kind of circumstance, a living will offers legal protections so that your wishes are obeyed, whether that means you receive treatment to prolong your life or refuse such treatment through your advance directive.

A skilled North Carolina will attorney can help you to write a living will that clearly states your wishes and helps protect you and your family in the event of a tragic accident or illness.

What is a Power of Attorney?

A power of attorney is a document that gives another person legal authority to make decisions on your behalf, such as selling assets or signing contracts. A power of attorney can come in different forms that grant different types of legal authority. In the context of estate planning, you might consider one of the following:

• Health Care Power of Attorney — This allows someone you trust to make medical decisions on your behalf, such as whether you should receive life-saving surgery.
• Durable Power of Attorney — A durable power of attorney can grant broad authority or narrowly tailored authority to the person you designate. What makes it “durable” is that it remains in effect if you become incapacitated. Normally, a power of attorney becomes void if you become incapacitated, such as by an accident or illness.

A North Carolina estate planning lawyer can explain more about the differences between the different types of power of attorney documents and recommend which type or types may be right for your needs.

When is Power of Attorney needed?

A Power of Attorney is an essential document necessary for any robust estate plan. Learn the types of Power of Attorney and when they go into effect.

A power of attorney can come in different forms that grant different types of legal authority. When you’re planning for your family’s future, you want to know that your will, living will, or power of attorney is in skilled and trustworthy hands.